Aaron Hernandez found not guilty of Boston double murder: Breaking down jury's decision

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The former NFL tight end is currently appealing his life sentence in prison for the murder of Odin Lloyd (though odds of winning the appeal are incredibly low), and this acquittal was one step closer to his freedom.

After 36 hours of deliberation, a Boston jury on Friday found Hernandez not guilty of the murders of 29-year-old Daniel de Abreu and 28-year-old Safiro Furtado, two men who were shot to death in a drive-by shooting outside the Boston nightclub Cure in the early morning hours of July 16, 2012. Hernandez was also found not guilty of five of six other charges, which included armed assault with intent to murder and assault and battery with a dangerous weapon. Five of those charges stem from Hernandez allegedly shooting in the direction of three other men who were with de Abreu and Furtado. One of those men, Aquilino Freire, was shot in the arm but survived. The last of those charges, witness intimidation, concerned the separate shooting of Alexander Bradley, a key witness who Hernandez was accused of shooting in the eye seven months after the Boston shootings. Hernandez openly wept in court upon hearing the verdicts of not guilty.

Hernandez, however, was convicted of unlawful possession of a firearm. Judge Jeffrey Locke sentenced Hernandez to four to five years in prison for that conviction, and—importantly—stipulated that the sentence will run consecutive to his other convictions. This means that Hernandez will not begin to serve his firearm sentence until his existing sentences expire. As a practical matter, Hernandez will only begin to serve the firearm conviction if he is able to successfully appeal his first murder conviction.

Friday’s verdict is a decisive victory for Hernandez’s legal team, led by Harvard Law School Professor Ronald Sullivan and prominent criminal defense attorney Jose Baez (who successfully represented Casey Anthony as well). The two attorneys took a case that many thought faced long odds and won.

While Sullivan and Baez repeatedly condemned the government’s case against Hernandez as unreliably tainted and inconsistent, they faced witness testimony that some regarded as compelling. On the other end of the spectrum, the case is a sharp defeat for the Suffolk County District’s Attorneys Office. Prosecutors from that office are surely shocked that the jury did not believe Hernandez was the murderer.

The government’s case was based mainly on one person: Alexander Bradley

The case against Hernandez was based on him allegedly feeling disrespected. While dancing in Cure, de Abreu accidentally spilled a few drops of his drink on Hernandez. Supposedly, de Abreu didn’t apologize and instead smirked at Hernandez. Such a sequence might mildly offend a typical person in Hernandez’s shoes. Hernandez, however, was accused of interpreting it as a confrontation worthy of lethal retaliation.

To advance this theory—which jurors may have found hard to believe, especially since they were not allowed to consider Hernandez’s conviction for murdering Lloyd— the government relied heavily on the chilling, but apparently not sufficiently credible, testimony of Hernandez’s former friend, Alexander Bradley. Bradley was with Hernandez at the time of the shooting and provided eyewitness testimony.

As retold by Bradley, Hernandez was incensed by the spilled drink incident at Cure. Despite his efforts, Bradley simply could not calm Hernandez down. After leaving Cure, Hernandez and Bradley walked across the street to another club. While there, Hernandez thought he spotted de Abreu once again, leading Hernandez to believe that de Abreu—who was a police officer in the island nation of Cape Verde before moving to Dorchester, Mass. in 2008—might be seeking a confrontation. Bradley, who regularly supplied Hernandez with marijuana, maintains that he tried to diffuse the situation by convincing Hernandez to go for a walk and smoke.

Still allegedly enraged nearly two hours after the spilled drink incident, Hernandez informed Bradley that he wanted to head back to Hernandez’s silver Toyota 4Runner. Hernandez, Bradley says, armed himself with a .357 silver revolver that Bradley had bought for Hernandez, using Hernandez’s money, a month earlier. With Hernandez in the passenger seat, Bradley then drove around the neighborhood in search of de Abreu and his group, which consisted of Furtado, Freire, Raychides Gomes-Sanches and Gerson Lopes. All of them were originally from Cape Verde.

Hernandez and Bradley would eventually find de Abreu as he and his friends hopped into a BMW. De Abreu entered the driver’s seat and began to drive off. Unbeknownst to either de Abreu or his passengers, Hernandez and Bradley were trailing behind in the Toyota 4Runner.

While de Abreu’s BMW stopped at a stoplight, Bradley ignored a red light and drove his Toyota 4Runner to the left of the BMW. At around the same time, Bradley rolled down his window. According to Bradley, Hernandez reached over him and yelled “Yo” at de Abreu. After grabbing de Abreu’s attention with a second “Yo,” Hernandez then allegedly shouted, “What’s up now, [racial epithet]?” Hernandez then fired his gun five times out of the car window, as Bradley sat back. Bullets struck de Abreu, Furtado and Freire, while Gomes-Sanches and Lopes were unharmed.

At the urging of Hernandez, Bradley then quickly drove off before the police arrived. Bradley says both men were in a state of shock as to what had just happened. After Hernandez regained his composure, he wiped off the gun and threw it and the gun shells out the window. Hernandez then arranged for his cousin, Tonya Singleton, to pick the up the Toyota 4Runner and store it in her garage. The car would be unexpectedly discovered a year later as police investigated Odin Lloyd’s murder.

Bradley thus placed Hernandez at the crime scene, explained how Hernandez committed the crime and detailed Hernandez’s motive. Bradley also seemed to make for a compelling witness because of his appearance—he has a large scar over his right eye—and his explanation for it. He was shot in the right eye in Feb. 2013 outside a Miami strip club, and although Hernandez was not charged with that particular shooting, jurors were asked to convict Hernandez of witness intimidation in connection with that shooting—a conviction that would have linked Hernandez to the Bradley shooting. Bradley insisted that Hernandez shot him with the intent to commit murder so that Bradley wouldn’t tell others about the Boston shooting. The jury, it seems, rejected this theory or at least wasn’t fully persuaded by it.

To rebut Bradley’s testimony, Hernandez’s attorneys portrayed Bradley as a liar and a violent drug dealer who was covering up his own crime. To be sure, Bradley is no angel. He was part of Hernandez’s network of criminals and is currently serving a five-year prison sentence in Connecticut for a shooting that took place in Hartford, Conn. back in 2014.

Bradley also testified as part of an immunity agreement, meaning he cut a deal with prosecutors to implicate Hernandez in exchange for not facing his own prosecution. Hernandez’s attorneys contend that Bradley was upset over a drug deal gone bad and then shot de Abreu in response. Bradley, at least as Hernandez’s attorneys frame it, enabled prosecutors to pin the blame on the much bigger fish: Hernandez.

While it’s unclear if the jurors believed this alternative narrative, what is clear is that they developed reasonable doubt about the prosecution’s narrative. Keep in mind Hernandez being found “not guilty” does not necessarily mean the jury believed Hernandez was innocent. But whether they did or didn’t isn’t what matters. What matters in a criminal trial is whether the burden of proof is met: prosecutors must convince a jury of a defendant’s guilt beyond a reasonable doubt. Suffolk County prosecutors were unable to do so.

A mixed bag of other incriminating evidence

Bradley wasn’t the only witness whose testimony either directly or indirectly implicated Hernandez. For instance, Bradley’s former girlfriend, Brooke Wilcox, detailed Bradley’s conversations about Hernandez. She told jurors that Bradley discussed the murders. Bradley, Wilcox said, once said to her of Hernandez, "This crazy mother [expletive] just did some stupid [expletive]." Her account of the events mostly supported that of Bradley. By generally corroborating Bradley’s account, Wilcox, prosecutors hoped, would have made Bradley a more believable witness.

Another surviving passenger in the BMW, Gomes-Sanches, also provided testimony that largely favored the prosecution. He told jurors that the shooter looked like Hernandez, though given that it was dark outside it’s unclear how valuable such testimony proved. Hernandez’s former personal assistant, Ryan McDonnell, similarly offered implicating testimony. He explained that Hernandez would on occasion get into arguments in nightclubs. In addition, Jeff London, who worked at Cure, recalled Hernandez trying to intimidate him by calling him a “snitch,” a statement which prosecutors tried to link to the Boston shooting.

There were also important pieces of physical evidence, such as video of Hernandez and Bradley near the shooting. The video made it difficult for Hernandez’s attorneys to claim that Hernandez was not present, though the shooting itself was not on video. Text messages also played a role. In March 2013—one month after Bradley was shot in the face—Bradley texted Hernandez, “U left me with one eye and a lot of head trauma.” Even Hernandez’s tattoos allegedly implicated him. Tattoo artist David Nelson, who tattooed Hernandez, told jurors that Hernandez wanted tattoos that appeared to commemorate his kills.

Less convincing was the purported murder weapon. While Bradley testified that Hernandez used a .357-caliber revolver that he discarded by throwing out of the car window, prosecutors insisted that Hernandez used .38-calber Smith & Wesson revolver that was made in 1913 and was retrieved in the car trunk of a woman linked to Hernandez. The .38-caliber did not indicate Hernandez’s DNA on it.

The case was not redundant

Some have wondered why prosecutors would prosecute Hernandez for the Boston murders when he has already been sentenced to life for Lloyd’s murder.

There are several reasons.

First, Hernandez’s conviction for Lloyd’s murder is on appeal and there exists a chance that the conviction will be vacated. Under Massachusetts law, convictions for first-degree murder are automatically reviewed by the Massachusetts Supreme Judicial Court. The review process can take years. Hernandez’s chances for appeal are discussed more fully below, but prosecutors did not want a scenario where Hernandez is not prosecuted for the Boston murders and then Hernandez’s earlier conviction for Lloyd’s murder is vacated, leading to his release from prison.

Second, to decline to prosecute a person whom the government believes is responsible for murder—the most serious criminal offense in our legal system—would arguably undermine justice. Two young men were murdered, and two others (Freire and Bradley) were shot in connection with those murders. In a society that values law and order, the person responsible for these acts should be held accountable. Jurors, however, were not sufficiently convinced that the responsible person was Aaron Hernandez.

Third, although the two murder cases both involved crimes that occurred in Massachusetts, they occurred in different counties within Massachusetts. Lloyd was murdered in Bristol County while de Abreu and Furtado were murdered in Suffolk County. Each county prosecutes its own crimes.

Fourth, and less important for society but quite meaningful for the victims’ families, a guilty verdict would have improved the de Abreu and Furtado families’ chances in their wrongful death lawsuits against Hernandez. Those lawsuits require a preponderance of evidence that Hernandez was responsible for the deaths. If Hernandez had been convicted, which requires a finding of beyond a reasonable doubt, it would have all but ensured the success of the accompanying civil lawsuits. Whether Hernandez, whose legal expenses have surely been massive and who no longer generates income, has the financial wherewithal to pay off a civil judgment is a separate matter altogether.

Comparing the Boston murders to Lloyd’s murder

With Hernandez acquitted in the Boston murders, it is interesting to compare the acquittal to the conviction of Hernandez in the Lloyd case. Recall the challenging dynamics for Bristol County prosecutor William McCauley and his team in securing a conviction for Lloyd’s murder. There was no murder weapon to show jurors and no credible or cooperating eyewitness to testify that Hernandez murdered Lloyd. Also, though not required for a conviction, an airtight motive for Hernandez murdering Lloyd—Hernandez’s so-called “blunt master” and the boyfriend of the sister of Hernandez’s fiancée, Shayanna Jenkins—was never established.

Jurors, however, were convinced that the culprit was Hernandez, who hours after the murder was recorded on his home surveillance system walking around with a gun and celebrating with his two conspirators (Ernest Wallace and Carlos Ortiz, both of whom were later convicted on lesser charges). Although jurors did not conclude that Hernandez killed Lloyd with premeditation, they believed that by shooting Lloyd six times in an execution style killing, Hernandez murdered Lloyd with “extreme atrocity and cruelty.” Such a condition is one ground for a first-degree murder conviction in Massachusetts.

In contrast, in the Boston murders, prosecutors had a cooperating eyewitness who tried, unsuccessfully, to convince jurors of Hernandez’s guilt. Indeed, Alexander Bradley offered the “who, what, when, why and how” of the murders. Prosecutors, as explained above, further relied on witness testimony that was designed to corroborate Bradley’s account and on incriminating physical evidence.

Hernandez as a former member of the Patriots, NFL and NFLPA

One disturbing way of looking at the Hernandez timeline is that he has been accused of shooting five men, killing three, in three separate incidents over an 11-month period between July 2012 and June ’13. He would have done so while excelling as a member of the Patriots. Indeed, only a month after Hernandez allegedly shot three men in Boston, the Patriots signed Hernandez to a $40 million contract extension.

The Patriots were obviously unaware of Hernandez’s off-field misconduct. Just the opposite, in fact, Hernandez was regarded as a hardworking, talented and reliable player. Indeed, right after signing Hernandez to the extension, Patriots Owner Robert Kraft praised the Bristol, Conn. native for donating $50,000 to a fund in memory of Kraft’s late wife, Myra Kraft. Patriots coach Bill Belichick, who seldom offers high praise, was similarly complimentary, lauding Hernandez’s commitment to becoming a star.

“Aaron has improved a lot,” Belichick remarked at the time. “He's worked hard, he's improved a lot in all phases of the game: passing game, running game, protection and his overall versatility. He's done a good job for us.” Hernandez, then 22 years old, was coming off the 2012 season in which he caught 51 passes in only 10 games. He and fellow tight end Rob Gronkowski, who was 23 at the time, were poised to become the best tight end duo in the NFL for years to come.

Hernandez would never play another down in the NFL. Since he was arrested at his North Attleboro, Mass. home on June 26, 2013, Hernandez has lived in either jails or prisons. Absent successful appeals (discussed in the next section), he will spend the remainder of his life behind bars.

While victims’ families have sued the Patriots, claiming the team bears some responsibility for Hernandez’s acts, those lawsuits are unlikely to succeed. Hernandez committed his crimes while not functioning within the scope of his employment. The murder of Lloyd occurred in the offseason, late at night and in a location that had nothing do with Hernandez’s Patriots career. No other Patriots employees were involved, either. While employers can be found civilly responsible for the crimes of their employees, such responsibility is normally limited to crimes that occur within the scope of the employee’s employment. That clearly did not happen with Hernandez.

Although the Patriots and by extension the NFL and the NFLPA likely did not break any laws in connection to Hernandez’s misdeeds, it remains an open question as to what teams, the league and the union should know about their players’ personal lives. There are appropriate boundaries of privacy that limit what employers can learn about employees. Yet given the extraordinary effort and expense NFL teams undertake to evaluate players, it is interesting that there is something of a blind spot with certain players. Hernandez isn’t the only example. Former Chicago Bears wide receiver Sam Hurd, who moonlighted as a drug dealer, is another. There may be other players who have or are partaking in criminal enterprises.

Appellate review of the murder conviction and related charges

In order for Hernandez to be freed, he must convince the Massachusetts Supreme Judicial Court to vacate four convicted charges from two separate prosecutions. One of those charges is for the first-degree murder of Lloyd, but the other three are felony firearm and ammunition charges (two from Lloyd trial and one from Abreu/Furtado trial). In other words, even if Hernandez could somehow prove his murder conviction was wrongful, he could remain in prison for years unless he can prove that other charges were also unjust. This is particularly true of the firearm charge from the Abreu/Furtado trial, as Judge Locke expressly dictated that the four to five year sentence would run after his other sentences expire or are vacated.

Appeals usually fail. In a federal criminal case, the odds of completely overturning a criminal conviction are very low. In fact, one study from 2014 finds the percentage to be only 7%. While Hernandez’s convictions are in state court, rather than federal, the odds will still be extremely low.

In his appeals, Hernandez will need to establish that the two judges—Judge Susan Garsh from the Lloyd trial and Judge Locke from the de Abreu/Furtado trial—made such significant errors that they prevented Hernandez from receiving fair trials. Typically defendants fail to show judges made mistakes. Even when defendants can establish that mistakes were made, usually the mistakes were relatively minor and didn’t meaningfully influence jurors or the outcome of the trial.

Hernandez’s conviction for the first-degree murder of Lloyd was surprising not because he was found guilty, but rather because of the rationale invoked by the jury. The jury concluded that the murder occurred not as a premeditated killing—as some believed it was—but as one with extreme atrocity and cruelty. To be sure, any execution-style murder could be described as extremely atrocious and cruel. However, to justify a first-degree murder conviction on that phrase suggests the murder must have been uniquely heinous. Yet there was no evidence that Lloyd was tortured or that his death was prolonged. Further, the firing of six bullets may have been more redundant than cruel: according to a medial examiner who testified, three of the bullets on their own would have killed Lloyd. Hernandez’s appeal can challenge whether Judge Garsh should have offered more clarity to jurors on how to interpret “extreme atrocity and cruelty.”

Hernandez’s appeals can also highlight evidence and testimony that his attorneys objected to during the trial but that the judges nonetheless admitted. For instance, Hernandez can claim that Judge Locke should have not admitted the tattoo testimony since it was prejudicial to Hernandez.

While Hernandez has overcome a major hurdle to obtaining freedom, he still faces difficult odds for winning an appeal. If he is unable to do so, we will continue to wonder how his story could be true. An NFL star who doubles as a murderer is hard to fathom.

Michael McCann is SI’s legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.